Brut beer takes on champagne

Champagne makers sued when De Landtsheer of Belgium launched “Malheur Brut Réserve” beer described as a “Champagnebier” made “à la méthode traditionnelle”. But do comparative ad laws apply? James Pond mulls the Advocate General’s opinion on the eve of the European Court of Justice verdict.

In 2001 De Landtsheer, a small Belgian brewer, launched a beer under the name 'Malheur Brut Réserve' which was brewed using a process based on the production method for sparkling wine/champagne, and marketed it using phrases such as "Brut Reserve", "La première bière BRUT au monde" and "méthode traditionnelle". It also described the beer as a "champagnebier", and apparently as "the Veuve Clicquot of the beer world".

The Champagne producers association CIVC and Veuve Clicquot subsequently brought legal proceedings against De Landtsheer in the Belgian courts, and at the first hearing they obtained a preliminary judgment preventing De Landtsheer from making certain references in their marketing materials, including to Champagne (which is protected as a designation of origin) and to specific champagne producers such as Veuve Clicquot.

However the court did not uphold all of the complaints, and refused to restrict De Landtsheer's use of "BRUT", "RESERVE", "BRUT RESERVE" and "La première bière BRUT au monde". CIVC and Veuve Clicquot appealed this decision, and De Landtsheer appealed against certain elements of the original decision, including an order preventing them from referring to "méthode traditionnelle".

Ultimately the case hinges on whether or not De Landtsheer's use of these indications and phrases constitutes unlawful comparative advertising under the EU Comparative Advertising Directive. The Belgian appeal court decided to refer certain questions to the ECJ as to the scope and interpretation of this Directive, and the Advocate General's opinion on these questions has just been published.

Advocate General's response

The principal question referred to the ECJ was whether or not references to a particular type of product (rather than to a particular competitor or the products offered by that particular competitor) fall within the definition of "comparative advertising", and as a result must comply with the requirements of the Comparative Advertising Directive.

The Advocate General says no – "comparative advertising" only includes advertising which expressly or impliedly identifies one or more specific competitor(s) or their products. He explicitly states that superlative advertising, such as "the most …" or "the best …", does not amount to comparative advertising for the purposes of the Directive, unless a specific competitor is explicitly or impliedly identified or conjured up in the mind of an average consumer (which may be the case, for example, where there is a monopoly or duopoly).

The Advocate General also considered other issues, including the test for determining whether a particular company or undertaking is a "competitor" to the advertiser. Although he confirmed that not all comparisons will necessarily be between competitors, the test is a broad one and it only needs to be established that the advertiser and the company/undertaking referred to are actually or potentially in competition in relation to some part of the products or services each offers.

Why this matters:

Although this opinion is not binding, the formal decision of the ECJ usually follows the Advocate General's opinion, and if so then this will be an important clarification of the application of the Comparative Advertising Directive rules.

However it should be remembered that even if the Comparative Advertising Directive does not apply to a particular comparison, other (national) rules may still apply. For example, in the UK section 19.1 of the CAP Code states that comparisons which do not identify competitors or their products must still be clear and fair and should neither mislead or be likely to mislead, and the elements of the comparison should not be selected in a way that gives the marketers an artificial advantage.

Therefore regardless of the ultimate outcome of this case, marketers should always check comparative claims carefully before making them, as you can be sure your competitor will.